Genocide, impunity and accountability in Rwanda: is it reasonable to expect a devastated legal system to deal justly with those who destroyed it?

William Schabas recently returned from Rwanda where he was a trial observer for the International Secretary of Amnesty International. He has been to Rwanda on many occasions in the past four years and has been actively involved in several projects relating to the rebuilding of the judicial system. He is Chair of the School of Law at the Universite du Quebec a Montreal.

In early February this year, a Kigali court sentenced one of the leaders of the 1994 genocide that killed as many as a million Rwandan Tutsi. Frodouald Karamira had led an extremist political movement that sabotaged the 1993 peace agreement and organized the mass killing of hundreds of thousands of innocent men, women and children. He is the twelfth person convicted and condemned to death since trials began in late December 1996.

I attended his three-day trial in January 1997 as an observer for the International Secretariat of Amnesty International. It had all appearances of fairness. The presiding judge gave the accused and his lawyer every opportunity to rebut the charges. But Karamira's defense convinced nobody. It consisted essentially of accusations that prosecution witnesses were liars.

One witness, who was missing an ear and an eye, described how Karamira had manned a barricade close to his home in a Kigali suburb and ordered armed thugs to execute a defenseless woman. Another testified that she called Karamira to request protection for her Tutsi employer, a prominent local businessman and neighbour of Karamira. But Karamira hung up the phone and minutes later militia members arrived at the house to kill the unfortunate man and his family.

Karamira denied accusations that he had fomented ethnic hatred. In fact, he had coined the phrase "Hutu Power" and mobilized racists in different political parties around a common program of genocide. When he challenged the court to furnish proof, the prosecutor played a damning tape recording of a racist speech Karamira had delivered in a Kigali soccer stadium.

Impunity: A new human rights focus

Impunity for massive human rights violations has become a major concern of human rights activists and scholars in recent years. Amnesties granted by some regimes in the name of national reconciliation have deprived victims of the moral satisfaction that accompanies convictions. They have often created obstacles to appropriate compensation. Impunity has served to perpetuate human rights violations or, at worst, acted as an invitation to pursue them. Some countries, aware of this but fearful that criminal prosecutions may revive or perpetuate tensions, have opted for means which are not strictly judicial, such as truth commissions.

Such a solution is inappropriate for Rwanda, given the magnitude of the crimes committed. Rwandese President Pasteur Bizimungu highlighted the dilemma in calling for innovative forms of justice while ruling out any possibility of amnesty. But is it practicable to judge 87 000 people--the current estimate of those held in Rwanda's grossly overcrowded prisons--for genocide and related crimes in a judicial system whose personnel has been decimated and whose material infrastructure devastated? Can it be done while respecting the fundamental rights of the accused, including the right while detained "to be treated with humanity and with respect" and to be tried "without undue delay" by an "independent and impartial tribunal"?

Genocide foretold 

My involvement in Rwandan justice goes back to a 1993 human rights fact-finding mission which included the International Centre for Human Rights and Democratic Development, Africa Watch, the Inter-African Union for Human Rights and the International Federation for Human Rights. I represented the Centre, which was then chaired by Ed Broadbent, visiting Rwanda for 15 days with nine other international experts. Within hours of our arrival we were on our way with picks and shovels to a village in the northwestern corner of the country to investigate accusations of genocidal murder of Tutsi herders.

An elderly woman had described how her sons had been summarily executed by the local burgomaster. After an afternoon battling hostile crowds, thunderstorms and the equatorial sun, and at a depth of about five metres, we began to find bodies. It confirmed the woman's story and, together with other facts assembled during our mission, led us to conclude that genocide was a real danger in Rwanda. There was more than circumstantial evidence: just weeks before our arrival and only miles from where we unearthed the mass grave, a henchman of the regime, Leon Mugesera, had given a speech that was widely interpreted as incitement to genocide. Mugesera later came to Canada where he fraudulently obtained refugee status. In July 1996, an immigration adjudicator confirmed, after hearing expert testimony, that the speech was indeed a call to genocide.

Our conclusions about the danger of genocide were picked up by a United Nations special rapporteur who visited Rwanda later that year and essentially endorsed our report. Foreign ministries, particularly in important donor countries such as France, Belgium, Switzerland, the United States and Canada, were quite indifferent. It has often been suggested that this was a failure of "early warning"--that somehow the message of the threat of genocide had simply not gone through. But as was revealed when full-blown genocide was unleashed in April 1994, the truth is that, warned or not, the international community was simply unwilling to intervene to prevent the slaughter.

"Rebuilding" the justice system

I returned to Rwanda in late 1994 at the request of the Broadbent Centre, together with Quebec judge Jacques Lachapelle. We met with the new Justice minister, judges, prosecutors and lawyers, and recommended ways in which foreign assistance could help rebuild the justice system. Our report noted the utter devastation of both material and human resources resulting from the genocide and the actions of the defeated Rwandese government forces as they retreated to Zaire in the summer of 1994. Recommendations included the provision of material resources, training programs and participation by jurists from other countries as prosecutors, defense lawyers and judges.

The term "rebuilding" is often used to describe the challenge of Rwandese justice, but it is not well chosen. In fact, the Rwandese legal system had never been more than a corrupt caricature of justice. In 1993, the system comprised about 700 judges and magistrates, and fewer than 50 had any formal legal training. Particularly in its final years, the Habyarimana regime was plagued by a culture of impunity for human rights violations. Even well-meaning lawyers and judges were powerless to prosecute the numerous atrocities during the few years that foreshadowed the 1994 genocide. There is, in effect, almost nothing to "rebuild" or worth "rebuilding."

The events of April, May and June 1994 devastated what little existed of the infrastructure, and reliable estimates suggest that no more than 20 percent of personnel survived. The rest were murdered in the genocide or were its perpetrators, in which case they generally have fled the country. The survivors, recruited and trained during the Habyarimana period, show the unfortunate signs of their inadequate professional backgrounds and have difficulty responding to the special needs of the situation. Their behaviour since the genocide certainly hasn't suggested that they were able to assume the role of vigorous and independent defenders of a new judicial system. They answer questions from foreign observers with feeble and barely credible excuses for their inability to prepare files and begin prosecutions. The handful of so-called defense lawyers who remain in Kigali categorically refuse to represent those in detention, casting doubt on whether the international human rights norm guaranteeing an individual the right to a defense through "legal assistance of his own choosing" can be assured.

In January 1995, donor states met in Geneva and pledged large amounts of aid to rebuild the justice system. The Centre for Human Rights of the UN's Geneva Office recruited jurists prepared to work within the Rwandese legal system. The European Union joined plans to recruit foreign judges and lawyers. Some projects were actually set up by NGOs such as the Brussels-based Citizens Network, which conducted training courses for judicial investigators during the first half of 1995. The French NGO Juristes sans frontieres and the International Centre for Human Rights and Democratic Development organized intensive courses on prosecuting genocide for Rwandese lawyers, magistrates and judges. By late 1995, however, very little of the promised aid had been delivered. And in September 1995, the Rwandese government made it clear it did not want foreign jurists working within its system as judges or other officers of the court, seeing this, not entirely without justification, as an unacceptable encroachment upon national sovereignty.

New legislation to assist prosecution

In November 1995, the Rwandese government organized an international conference in Kigali entitled "Genocide, Impunity and Accountability." The meeting brought together several dozen foreign experts and senior Rwandese leaders. The latter included most cabinet ministers, senior military officials, representatives of local NGOs and genocide victim associations. The five-day conference wrestled with the problems of prosecuting perpetrators of the genocide. I participated in the workshop on genocide prosecutions and delivered the concluding report to the President and the Prime Minister at the final session, held in the battle-scarred chamber of the National Assembly.

The conference recommended new mechanisms to deal with genocide cases, including specialized chambers of existing courts, a classification scheme to separate the main organizers of the genocide from criminals with lesser responsibility and a unique procedure aimed at encouraging offenders to confess in exchange for substantially reduced sentences. The Rwandan Ministry of Justice prepared legislation giving effect to the recommendations and a draft law was approved by the Cabinet in April 1996. The legislation then went to the National Assembly for adoption. It was approved by the Constitutional Court in early September.

It consists of special rules which take precedence over ordinary criminal law provisions and defines four categories of offenders. The first includes organizers and planners of the genocide, persons in positions of authority within the military or civil infrastructure who committed or encouraged genocide, and those who committed "odious and systematic" murders. This category accounts for a relatively small percentage of the total detained and will overlap considerably with those over whom the International Criminal Tribunal for Rwanda will attempt to establish jurisdiction. The second category covers those not in the first group who committed murder or serious crimes against the person resulting in death. The third category comprises those who committed other serious crimes against the person and the fourth is made up of those accused of crimes against property.

The heart of the new legislation is the "Confession and Guilty Plea Procedure." In return for a full confession, offenders benefit from very substantial reductions in penalties. Confessions must include a complete description of the offenses, including information about accomplices and other relevant details. The prosecutor has three months in which to confirm the truth of a confession. If the confession is unchallenged during that time, it becomes a guilty plea and the file proceeds to sentencing.

A confession approach has found considerable support in South Africa, where it is viewed as an appropriate way to deal with many criminals of the apartheid regime. Confessions, irrespective of any eventual criminal sanction, are seen as an important source of justice for victims. Moreover, they help establish truth about events, setting the record straight. The Rwandan approach did not go as far as the South African program, where a full confession provides the offender with immunity from prosecution. But plea bargaining, a popular means of dealing with crowded dockets in many jurisdictions, was provided for in the Rwandan legislation. Such bargaining is new to the Rwandan legal system, which is derived from Belgian law.

The legislation declares that sentences are to be imposed in accordance with the Rwandan Code penal, subject to certain exceptions. Offenders in Category I are to be sentenced to death. However, if they confess before being formally charged and before their names have been published on a list of accused, they can benefit from the Category II scale of punishment. Category II offenders who would receive the death penalty for homicide under ordinary criminal law provisions will instead be sentenced to life imprisonment. Other Category II offenders who take advantage of the special procedure will receive substantially reduced sentences, with additional incentives for those who confess before prosecution begins. Category III offenders are subject to a maximum of one third of an ordinary sentence if they enter the program prior to prosecution and to one half if they enter after. Category IV offenders won't be imprisoned and are subject only to compensation orders. It remains to be seen whether these reductions are sufficient to incite offenders to confess and plead guilty.

Illegal detention and international norms

Medical and nutritional problems in prisons have eased, due largely to organizations such as the International Committee for the Red Cross. There have been efforts to expand prisons and construct new ones. With the opening of a new institution financed by the Netherlands, the population of Kigali Central Prison fell from more than 11 000 in March 1996 to about 9000 in July. But even with improvements, the overcrowding defies description: in many prisons, there is not enough room for inmates to sit down or lie down at the same time.

In September 1996, the National Assembly adopted legislation to regularize the detention of tens of thousands of suspects, many held without formal charges since the summer of 1994. UN special rapporteur Rene Degni-Segui criticized the new rules as being "emergency measures that are not consistent with international standards." The legislation gives authorities until the end of 1997 to prepare arrest warrants and pretrial detention orders for those already in custody. It also allows prosecutors several months of preventive detention for those arrested after the new rules were adopted.

International human rights law allows the suspension of fundamental rights, such as the right to be informed of charges, to appear in court promptly and to contest detention by way of habeas corpus. Such rights can be suspended during "a public emergency which threatens the life of the nation." Degni-Segui agreed that the judicial system's inability to cope with prison over-crowding was a public emergency that required legislation, but said this has not been the case since early 1995. Nonetheless, he stopped short of calling for the release of prisoners, which appears to be the only real solution to the human rights violations he alleges. And releasing the prisoners would violate another human rights principle upon which he insists, the "punishment of all human rights violations in order to break with the tradition of impunity."

Trials begin in December 1996

Ideally, the roughly 90 000 detainees would be brought to trial promptly. But that is simply unrealistic. The international community had been urging Rwanda to bring the perpetrators to justice since late 1994. Major donors threatened to suspend or withdraw aid unless Rwanda got its act in order and began the trials. Yet when they began in late December 1996, there was an international chorus of condemnation of what journalists and other observers found to be summary trials and a lack of due process. They criticized the lack of witnesses or, when witnesses were called, the failure to permit cross-examination. Trials were short, often lasting only a few hours or a day.

Much of this criticism was simply ignorance of the Rwandan judicial system, which is based on the Continental European model. Under such "inquisitorial" systems of criminal procedure, an instructing or investigating magistrate collects evidence and questions witnesses prior to trial. The magistrate's file is then submitted to the court, and trial really amounts to debates between the parties about the significance of the evidence. In exceptional cases witnesses are called, but there is no cross-examination as we know it. Many critics of the Rwandan trials betrayed a judicial ethnocentrism. It was as if international fair trial standards had to correspond to common law rules. If it didn't look like Perry Mason or L.A. Law it simply couldn't pass muster.

This is not to say that there were not serious shortcomings. I attended several trials in January and February 1997. The biggest failing was the frequent lack of defense counsel, a continuing sore point in projects to rebuild Rwandan justice. The Rwandans have taken the view that while they won't oppose the presence of defense counsel, they won't go out of their way to see that it is provided. This led to the inclusion of a totally gratuitous provision in the 1996 genocide legislation stating that while the right to counsel is ensured, lawyers are not to be paid by the state. Nor has defense counsel been an easy sell among international actors. Most aid agencies opted for prosecution-focused assistance, such as training of prosecutors and investigators. Funding the training of defense lawyers was about as popular as proposing to build more prisons.

After two years of ignoring the problem, Rwandan officials and international bodies are slowly realizing their error. Karamira benefited from the services of a defense lawyer, Paul Attita, a member of the bar from the West African country of Benin. Attita was engaged by the Belgian-based NGO, Lawyers Without Borders, which has provided defense lawyers for genocide suspects. There are fewer than 20 Rwandan lawyers, and most have refused to take on the defense of genocide cases. Some fear reprisals, but often they simply don't have the stomach to defend mass murderers.

Most of Rwanda's judges and prosecutors have been hastily recruited and given brief but intensive training, some of it financed and provided by Canadians. They were intimidated by the possibility that foreign defense lawyers might humiliate them with legal expertise and technical maneuvers. Many feared unjustified acquittals would be won by unscrupulous attorneys.

Karamira's trial seems to have changed this perception of the role of lawyers. In his final address to the court, Attita explained that defense lawyers are an integral part of justice. He had proved his point during the trial by making helpful comments and behaving with courtesy and respect. A few hours before Attita left Kigali to return home, the presiding judge telephoned him to thank him for his contribution.

Defense lawyers are the grease without which the wheels of justice simply cannot turn. They are indispensable if the confession and plea bargaining aspects of the genocide legislation are to operate. It is certainly not prosecutors or other Justice department officials who will convince inmates to settle their cases with a confession. One imaginative proposal to resolve the problem would create a body of genocide "defenders," trained quickly in techniques of advocacy and relevant legal issues. They would not be full-fledged lawyers, there simply isn't time for that. But even if they didn't master bankruptcy or family law, they could be just as skilled in a specialized field of criminal law as European or North American graduates.

The proposal has met with a lukewarm reception in Rwanda. In February, the Justice minister told me he felt this would be allowing second-class representation and that it was unacceptable. His position doesn't seem to fit with his willingness to see trials go on where defendants are unrepresented. We may not be able to deliver a Cadillac, but that shouldn't stop us from offering a Volkswagen.

Death sentences and human rights

The most disturbing problem I encountered in attempting to assist Rwanda to bring genocide perpetrators to justice has been the continued insistence on imposing capital punishment. Since late December 1996, more than a score of death sentences have been pronounced, including that of Karamira. Although entitled to two levels of appeal as well as a request for pardon, there is little doubt that Karamira's conviction and sentence will be upheld.

Rwanda has not actually imposed capital punishment since 1982, and in 1992 President Habyarimana commuted all outstanding death sentences. In the 1993 Arusha peace accords, which have constitutional force in Rwanda, the government undertook to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights Aimed at Abolition of the Death Penalty, although it has not yet formally done so. The suppression of capital punishment for Category II offenders is a welcome development in the new legislation. It sits squarely within a rapidly emerging abolitionist trend on the African continent, exemplified by the recent judgment of the South African Constitutional Court declaring capital punishment to be cruel, inhuman and degrading.

Will the death penalty help or hinder Rwanda's search for reconciliation and renewal? Proponents of capital punishment, inside and outside Rwanda, argue that it is compelled by imperatives of vengeance and retribution. Yet vengeance and retribution may only plunge Rwanda into new cycles of violence. In a private meeting, Rwanda's Minister of Justice indicated that he is weighing seriously these arguments against the death penalty.

Relations with the International Tribunal

Rwanda tracked down Karamira last year in India, where he had sought refuge in 1994. The International Criminal Tribunal for Rwanda, which sits in Arusha in nearby Tanzania, made a competing request for extradition. It considers itself to be the appropriate forum for trials of the major criminals, leaving the less important ones to the domestic justice system. The International Tribunal eventually backed down in the tug-of-war with Rwandan authorities, recognizing that Rwanda needed to judge at least a few of the big fish.

Relations with the International Tribunal have been strained, at best, since its creation in November 1994. Rwanda initially asked the Security Council to create the Tribunal, but then opposed the final proposal for several reasons, including the exclusion of the death penalty, the limitation of jurisdiction to crimes committed in 1994 and refusal to base the court in Kigali.

The Tribunal has been beset with its own problems. Its senior officials were charged with corruption or incompetence, and in February 1997 UN Secretary-General Kofi Annan replaced them. Rwanda seized the occasion to criticize Canadian judge Louise Arbour, charging that her reputation as a war crimes prosecutor is undeserved, given her 1992 judgment on the Ontario Court of Appeal upholding the acquittal of Hungarian war criminal Imre Finta.

The strained relations are hard to explain, given the interest both sides have in working together. For the International Tribunal, co-operative local authorities are indispensable to the conduct of full investigations within Rwanda. For Rwandans, a few judgments from the International Tribunal will indelibly inscribe the events of the 1994 genocide into the historical record, something that the domestic courts, vulnerable to charges of ethnic bias, can never accomplish.

Conclusion

Since genocide trials began in Rwanda, only a few dozen cases have been completed. At the current rate, most suspects will die of old age in prison before they get to court. Rwandan authorities hope that many will avoid trials and plead guilty in return for lighter sentences. But at some point, when a reasonable number have been judged and sentenced, we may be forced to admit the limits of traditional criminal justice.

Criminal prosecution obviously has an essential role to play in battling impunity in Rwanda. President Bizimungu was right, in November 1995, when he ruled out an amnesty for offenders. As far as a truth commission is concerned, it is an enticing possibility and there is clearly much to learn from the South African model. Yet a truth commission would also require a substantial infrastructure. This is Rwanda's real problem: resources. One way or another, it is stymied in delivering justice because of poverty and underdevelopment.

Rwanda must be encouraged to continue with its search for justice. International human rights advocates must show understanding, compassion and above all respect for indigenous solutions, created because of the material inability to create judicial systems that mirro those in the developed world. I have no doubt that in traditional societies in Africa there were systems of prosecution that were fundamentally just and respectful of the rights of the accused. To assume otherwise is to concede that justice can only be assured in societies that are rich, something that I refuse to do.